UK Law: Sex Shops

An interesting newsletter from a law firm discussed legal issues arising Leeds City Council considering the lap dancing licences for the 7 clubs in the area.

First of all it noted that an existing licence is consider in law as a protected possession in human rights law:

It has been accepted that a licence is classed as a possession capable of protection under Article 1 of the First Protocol of the European Convention on Human Rights.

This clearly states that a person has a right to peaceful enjoyment of his possessions and the case of Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR classifies a licence as something capable of protection.

Not something that can councils can take away on a moralist or feminist whim.

Secondly there are European requirements imported into UK law that impose standard conditions on councils when considering licence applications:

The Provision of Services Regulations [S.I. 2009/2999]. Regulation 24(1) imposes three important tests highlighting that any refusal must be:

• Non discriminatory
• Necessary
• Proportionate

Surely this would allow failed applicants to ask a court 'exactly how necessary was it for a council to refuse a license for a venue 200m away from a school where the operating hours don't overlap?'

The law firm noted that all 7 clubs in Leeds got their licences despite a high level of opposition from MPs, councillors and Object.

...Read the full article

Gosschalks Solicitors in Hull city centre acted for successful claimants in a case that saw Westminster City Council come under scrutiny after it was revealed it had been charging too much for granting and renewing licences to trade to operators of sex shops in its area.

Stephen Dillon, partner at Gosschalks Solicitors said:

Since December 28, 2009, Westminster had been illegally charging licensees, through their annual fee, for costs incurred by Westminster Council taking action against unlicensed sex shops. As a result, the lawful licensed sex shops were being charged far too much in their licensing fee to trade.

The case has also now created more work for Gosschalks. Dillon said there will be about 40 other local authorities to investigate and reminded people who are required to have a local authority licence to trade to consider whether they have been, or are being, overcharged. Dillon suggested that licensees could take advantage of the Freedom of Information Act to find out more details on how councils have arrived at their licence fees.

Gosschalks will now be making requests to other local authorities. Dillon said: We will be asking how the figures have been calculated. It may be that they are legitimate but until we ask, we won't know.

Since the ruling in May, Westminster City Council asked for permission to appeal but it was rejected.

Sex shop owners have won a High Court victory over licensing fees which could see them claw back an estimated £ 1 million.

A judge has ruled that Westminster City Council unlawfully used licence fee income to enforce against illegal sex shops. Mr Justice Keith declared that a recently introduced European directive did not permit the determination of a reasonable licence fee to include the costs of enforcement.

Tony Devenish, the council's Cabinet member for licensing and public health, spouted:

Naturally we are disappointed at this decision, which we intend to appeal.

Westminster City Council has always maintained that the use of licence fee income to enforce against illegal sex shops is a proper use of public money, protecting the quality of life for our residents and visitors, including the global reputation of London.

Enforcing against the illegal sex trade actually benefits those who are legitimate operators in the sex industry.

With millions of extra visitors about to descend on London to celebrate the Jubilee and Olympics, it is critical people see the best face of our city.

The landmark ruling was a victory for Simply Pleasure Ltd and six other long-standing licensees of 11 sex shops in London's Soho and two others in Covent Garden and the West End selling adult sex toys, DVDs, and books and magazines.

The judge said that in the past the cost of enforcing the licensing system was often reflected in the licence fee. But in 2009 new regulations were introduced to implement EU Directive 2006/123/EC, which was aimed at creating a free and competitive market for services within the European Union .

The judge said that whatever domestic law had permitted in the past , the directive did not allow the licence fee to exceed the administrative costs covering the steps which an applicant for a licence has to take if he wishes to be granted a licence or to have his licence renewed. The judge said:

The fact that the council has preferred over the years to use the licence fee to charge the operators of sex establishments for enforcing the system does not affect the proper interpretation of the 2009 regulations.

For all these reasons, therefore, I have concluded that since the year beginning February 1 2010 the council has not been permitted, when determining the reasonable licence fee for sex establishments, to reflect the fee which it determines the costs of enforcing the system.